Electronic evidence poses challenges even after 25 yrs of IT Act: Justice Bharati Dangre

Panaji, Sep 25 (PTI) Bombay High Court Justice Bharati Dangre has said that despite the enactment of the IT Act in 2000, courts and probe agencies in the country continue to face hurdles in appreciating electronic evidence which plays a crucial role in criminal trials.

She was delivering the inaugural address at a series of workshops on forensic evidences organised by the Goa State Legal Services Authority and the Goa High Court Bar Association on Wednesday near Panaji.

While traditional concepts of primary and secondary evidence had barely settled under the Evidence Act, the Information Technology Act brought in fresh complexities, Justice Dangre said.

The fresh challenge was to conceive that evidence in the form of an electronic record, she pointed out.

With the enactment of the Information Technology Act in the year 2000, many changes were brought in the IPC as well as the Evidence Act, she noted.

"It is almost 25 years since this Act was brought into force, but still we are struggling how to appreciate the electronic evidence for a long period of time," Justice Dangre said.

She said the legal fraternity, including prosecutors, defence lawyers, trial judges and high court judges, must engage more deeply with both the legal and practical aspects of electronic evidence.

"Even after 25 years, this is a field full of nuances. We don't know how it is really appreciated. The electronic evidence will have to be trusted and appreciated with care," she added.

Justice Dangre also said, "The success of a trial is not dependent upon the quantity of evidence, but it depends upon the quality of evidence that is led before the court." She pointed out that once evidence is recorded in a trial court, it remains the same even when the matter goes before the High Court or the Supreme Court.

"What the complainant has said in the (lower) court is going to continue, no matter (even if) the matter goes to the Supreme Court," she said, underlining the significance of credible evidence in transforming a suspect into an accused and then into a convict.

"With the Evidence Act being in force, we were struggling with what is primary evidence. What is secondary evidence, and by the time we could barely settle it, the new Act came," she said.

Referring to Section 65B of the Evidence Act, she spoke about the requirement of a certificate by the person in charge of the device to prove that electronic evidence is authentic and untampered.

"It is very easy when you produce the device itself in court. But when you transfer the data from that mobile device into some other module - a chip or pen drive - then this transfer requires a 65B certificate," she said.

Justice Dangre pointed out practical challenges in cases involving WhatsApp chats, especially in matrimonial disputes and cases unde the Protection of Children from Sexual Offences (POCSO) Act.

"You find a heap of documents of WhatsApp chats right from the first day of marriage or relationship. But what police is doing with the phone? They send it for forensic analysis. I have never seen any case where the analysis has actually been brought on record," she observed.

On cybercrime, Justice Dangre warned that criminals are often a step ahead of law enforcement.

"With this new technology, crimes are on the rise. As I always feel, when we think that the police machinery and judges are becoming smart, the criminals are getting smarter because they know how to evade being caught," she said.

Citing the example of online frauds depicted in the OTT series "Jamtara" and the darker realities of the darknet, she said, "There is so much trading, so much sale of narcotic drugs which is all taking place through the darknet. Confronted with statistics, we will find that only five per cent of these cybercrimes are really detected and the criminals are punished." PTI RPS GK